Arbitration season is upon us. This winter, Mookie Betts‘ contract set a record for a second-time arbitration-eligible player after agreeing to a $20 million deal with the Boston Red Sox to avoid arbitration. NL Cy Young winner Jacob deGrom set some records of his own with his $17 million agreement with the Mets. But other players didn’t fare as well. Aaron Nola and the Phillies were over $2 million apart; a smaller but still significant gap exists between the Yankees and Luis Severino. We’ve talked before about the problems inherent in the current system of salary arbitration for major league baseball players. With a growing number of cases going to arbitrators, and with those cases proving to be seemingly quite contentious, I thought it would be useful to explore solutions to an increasingly thorny problem. This piece will serve as a refresher of the basics; we’ll offer some fixes in the days to come.
Often, analyses of MLB salary arbitration focus on the fact that the hearings typically only consider traditional, “old school” statistics.
Another quirk to the arbitration process is that it usually only factors in “baseball card statistics” rather than more sophisticated metrics. While teams signing free agents are typically up to speed on sabermetrics, the arbitration process does not account for them. Counting stats are important, as is playing time in general. Since labor lawyers typically sit on arbitration panels, the concept of “making it to work every day” is something that holds value.
That last sentence is something else important to focus on: salary arbitrators are typically randomly selected labor lawyers. And while some have a comprehensive knowledge of baseball, it isn’t their day job: arbitrators usually hear many different types of cases, with many different fact patterns. That means that a baseball salary arbitrator may well also arbitrate cases on entirely different matters.
Now, the 2016 Collective Bargaining Agreement does allow for the use of some publicly available advanced metrics.
Only publicly available statistics shall be admissible. For purposes of this provision, publicly available statistics shall include data available through subscription-only websites (e.g., Baseball Prospectus). Statistics and data generated through the use of performance technology, wearable technology, or “STATCAST”, whether publicly available or not, shall not be admissible.
But, often, salary arbitrators aren’t well versed in sabermetrics or advanced analytics. As a result, the statistics being used tend to be basic – very basic. In developing their arbitration projection model, Matt Swartz and MLB Trade Rumors noted as much.
Hitters are typically evaluated using batting average, home runs, runs batted in, stolen bases and plate appearances. There are some positional adjustments, but typically the added defensive value of a shortstop relative to a first baseman is not as important in arbitration hearings as it is on the free agent market. Hitters also can receive larger arbitration awards if they have unique accomplishments, such as winning an MVP award. Pitchers typically are evaluated using innings pitched and earned run average. Starting pitchers are rewarded for wins, and relievers are rewarded for saves and holds. Unique accomplishments, such as Cy Young Awards, matter for pitchers as well.
Still, despite its flaws, the arbitration system was, for some time, considered a great success. After all, while it’s generally accepted that free agency led to rising salaries for major league players, there’s at least some evidence that salary arbitration – the process by which players who are not yet free agents, but have at least three years’ service time, have their salaries determined – has also led to improved compensation. Over the last few years, however, salary arbitration has devolved from a system teams and players can leverage to obtain a negotiated contract into a viable means for teams to contest players’ salary demands in the hopes arbitrators side with teams’ lower salary figures.
The concept of “file-and-trial” – that of a team electing not to negotiate with players after arbitration figures are submitted and exchanged – has become so commonplace that Major League Baseball has a glossary entry defining and explaining it. This method has an effect on the strategies employed by players and their representatives, who find themselves at an obvious resource deficit compared to teams. As Craig Calcaterra detailed:
There is certainly an advantage to file-and-trial for a team. It makes the player and the agent work harder and earlier in order to be prepared to negotiate with the club before the file deadline. It also makes them work a lot harder to come up with a defensible filing number given that, rather than merely being an opening salvo in an extended negotiation, it’s something that they will certainly have to defend in open court. It’s also simple hardball. Teams have greater resources than the players and the agents and it’s less painful for them to pay for lawyers and hearing prep and to conduct the actual hearing. There’s risk to the team, of course — they might lose and pay more than a settlement would’ve cost — but teams are obviously concluding that the risk is worth it.
Ken Rosenthal wrote late last year that the MLBPA feared that every team would soon adopt the “file-and-trial” approach. And while that didn’t happen this offseason, the number of arbitration hearings continue to rise, and they are increasingly acrimonious, as Michael Baumann noted for The Ringer.
For years, it was generally accepted that it was undesirable for a team to let arbitration-eligible players actually go to a hearing over salary, since a hearing would force the team to bad-mouth a player; the morale costs outweighed the potential financial gain from holding a hard line. Last year, more arbitration cases went to a hearing than in any year since 1990.
Yankees executive Randy Levine famously ripped Dellin Betances‘ arbitration request of $5 million in the media, comparing Betances’ submission analogous to Levine calling himself an astronaut. Blue Jays righty Marcus Stroman took to Twitter to remark that “[t]he negative things that were said against me [in the hearing], by my own team, will never leave my mind.” The salary arbitration system, initially designed to encourage settlements between team and player, is now driving wedges between the parties, though it is worth noting that whether those wedges persist once players make free agency decisions isn’t a settled question.
What we can say is that the salary arbitration system isn’t working optimally: it doesn’t reflect what we actually know about baseball by excluding publicly available advanced metrics, and it’s further damaging player-team relationships. With this in mind, it’s no surprise that agents are starting to take a harder line on arbitration.
In a mission statement distributed among some players, Jeff Berry, who helps run the baseball division at CAA, outlined a number of steps he believes are necessary to rectify the imbalance of power in the relationship between MLB and the union. It was no surprise that his first target was arbitration. “[A]ttacking the arb system,” Berry wrote in the memo, which was obtained by ESPN’s Buster Olney, “is an ideal battleground for MLBPA/players/agents to take a unified stand and to feel empowered and proactive rather than victimized.”
There’s no doubt that the current arbitration model suffers from some deep structural problems. Over the course of the next few days, we’re going to take a look at how to fix them.
Sheryl Ring is a litigation attorney and General Counsel at Open Communities, a non-profit legal aid agency in the Chicago suburbs. You can reach her on twitter at @Ring_Sheryl. The opinions expressed here are solely the author's. This post is intended for informational purposes only and is not intended as legal advice.